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2001 DIGILAW 301 (JK)

Nissar Hussain v. State Of J. &K.

2001-11-27

T.S.DOABIA

body2001
1. The facts in brief, are as under: The petitioner preferred an application under Section 27 of the J&K Agrarian Reforms Act, 1976. According to him, he was dispossessed in an unauthorized manner from the land in question and that he was entitled to the restoration of the possession. This application was preferred before the Additional Deputy Commissioner, Poonch. The Additional Deputy Commissioner found merit in the submission made by the petitioner. An order as prayed for, was passed in favour of the petitioner. This order was challenged before the J&K Special Tribunal. The Tribunal came to the conclusion that Additional Deputy Commissioner was not a Revenue Officer for the purposes of exercising jurisdiction under Section 27 of the J&K Agrarian jurisdiction. Taking note of this fact, matter stands remanded to the Assistant Settlement Officer. It is this order which is subject matter of challenge in this petition. It is submitted: i. That the respondent who moved the Special Tribunal had acquiesced to the jurisdiction of Additional Deputy Commissioner and, therefore, he could not raise the argument that Additional Deputy Commissioner had no jurisdiction in the matter; ii. That the Additional Deputy Commissioner is a revenue officer and, therefore, he could deal with a matter arising under Section 27 of the Agrarian Reform Act. 2. So far as the first argument is concerned all that is required to be said is that if there is total lack of jurisdiction, then merely because the parties have consented or have continued pursuing a forum, that would not confer any jurisdiction on the said Officer. Total of lack of jurisdiction cannot be ignored. Therefore, the plea raised on the principle of acquiescence would be of no assistance to the present petitioner. 3. The merits of controversy is to be examined. The term "revenue officer" has not been defined in the J&K Agrarian Reform Act, 1976 (hereinafter referred as 1976 Act). As such this would have the same meaning as is given to it in the Jammu and Kashmir Land Revenue Act. This becomes clear when Section 2 (18) of the J&K Agrarian Reform Act of 1976 is taken note of. This provision as also Section 27 of this 1976 Act are reproduced below: - 2(18). As such this would have the same meaning as is given to it in the Jammu and Kashmir Land Revenue Act. This becomes clear when Section 2 (18) of the J&K Agrarian Reform Act of 1976 is taken note of. This provision as also Section 27 of this 1976 Act are reproduced below: - 2(18). Words and expressions not defined in this Act shall have the meaning as assigned to them in the Jammu and Kashmir Majority Act, Samvat 1977 the Jammu and Kashmir Land Revenue Act, Samvat 1996, and the Jammu and Kashmir Displaced Persons (Permanent Settlement) Act, 1971. Explanation: - For purposes of clauses (8) and (11) where a person, governed by Mitakshara School of Hindu Law, is recorded as owner of intermediary of ancestral property, his male lineal descendence in the male line of decent shall not, where he was alive on the first day of September, 1971, be deemed to be owners or intermediaries, as the case may be, of such property." 4. Section 27 of the J&K Agrarian Reforms Act, 1976 reads as under:- 27. Implementation of the provisions of the Act (1). A Revenue Officer may take or cause to be taken such steps and use or cause to be used such force as may, in the opinion of such officer, he necessary to implement the transfer of,- eviction from or delivery of possession of, land under this Act, notwithstanding anything contained in any other law for the time being in force. (2) Any person unauthorsidely occupying of wrongfully in possession of any land. (a) the transfer or acquisition of which, either by the act of parties of by the operation of law, is invalid under the provisions of this Act; or (b) to be use and occupation of which he is not entitled under any provision of this Act; It may be summarily evicted by a Revenue Officer. (3) At anytime after the commencement of this Act, it shall be lawful for a Revenue Officer or authority to act which he considers necessary for carrying out the purpose of the Act.� A reading of the aforementioned statutory provisions makes it apparent that a Revenue Officer can summarily evict a person, who has entered possession by taking law into his own hands. As to who this Revenue Officer is required to be gone into. As to who this Revenue Officer is required to be gone into. The term "Revenue Officer" has been defined in J&K Land Revenue Act; Section 3 (xii) thereof is to the following effect: Revenue Officer in any provision of the Act means a revenue officer having authority under this Act to discharge functions of a revenue officer under that provision.� (Emphasis supplied) 5. A reading of this provision defining Revenue Officer which stands planted in the J&K Agrarian Reforms Act. 1976 would mean only that Officer who is authorised to act as revenue officer only such officer can deal with a particular matter. Therefore, only that revenue officer who is duly authorised U/s 27 can act in this regard and would be competent to pass an order of eviction. For this purpose, it would be apt to refer to SRO 59 issued on 03-02-1997, in this SRO it has categorically been mentioned that so far Additional Deputy Commissioner is concerned, he can hear appeals only. So far as Assistant Commissioner (R) is concerned, he has been conferred power vis-a-vis all matters to be dealt with under the provisions of J&K Reform Act, 1976 and the rules made thereunder. SRO 59 in so far as relevant reads as under:- "3. Every Addl. Commr. Dy. Comm. Within his respective jurisdiction excluding the areas notified and taken up for settlement operations. Hearing of appeals. 4. Every-Assistant Collector Commr. (R) and (G) and Sub Divisional Magistrate. With his territorial jurisdiction excluding area notified and taken up for settlement operations All matters to be dealt with under the Agr. Ref. Act rules by Collector." 6. Thus so far as J&K Agrarian Reforms Act is concerned. Additional Deputy Commissioner can only hear appeals, meaning thereby, that he has no power to deal with a petition under section 27 of the Act. He can hear the matter when it comes before him in the exercise of appellate jurisdiction. It is only the Assistant Commissioner who is competent to deal with all matters arising under the J&K Agrarian Reforms Act of 1976. It is, accordingly, held that it was only this officer who could deal with the matter If this be the situation, then no fault can be found with the order passed by the special tribunal. This petition is found to be without merit and is dismissed. It is, accordingly, held that it was only this officer who could deal with the matter If this be the situation, then no fault can be found with the order passed by the special tribunal. This petition is found to be without merit and is dismissed. Parties would appear before the concerned officer on 31-12-2001 Meanwhile status quo shall be observed. Disposed of.